In an action to recover damages for personal injuries and
Ordered that the order is modified, on the law, by adding a provision thereto that, upon searching the record, summary judgment is awarded to the defendant second third-party plaintiff Gilbert Johnson Enterprises, Ltd., dismissing the plaintiffs causes of action sounding in common-law negligence and based on violation of Labor Law § 200 insofar as asserted against it; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable by the plaintiff to the defendant third-party plaintiff and the defendant second third-party plaintiff.
On February 4, 1999, the plaintiffs decedent was working 25 to 30 feet above ground on a roof more than 20 feet above ground with a pitch of 45 degrees when he fell to his death. The safety devices provided by the third-party defendant, RPM Construction Corp. (hereinafter RPM), were free standing ladders, roof brackets, planks on the roof known as roof scaffolds, and roof cleats. 12 NYCRR 23-1.24, which governs work on roofs, provides that for “[h]igh and steep roofs” more than 20 feet above the ground, whose slope “is greater than one in four, a ground-supported scaffold . . . shall be provided” (see 12 NYCRR 23-1.24 [b]). The plaintiffs expert, in his verified report, noted that the “fall height was greater than 20 [feet]” and the “slope of the roof was significantly greater than 1:4.” It is undisputed that no ground-supported scaffold was provided.
The decedent’s coworker testified at his deposition that just before the accident, the decedent was standing on the roof about five feet above a roofing scaffold unrolling tar paper. At the time the decedent fell, he was holding a full roll of tar paper weighting 45 to 50 pounds. The decedent appeared to run down the roof, catch his foot on a bracket, and fall off the roof head first.
The plaintiff, as administrator of the decedent’s estate, commenced this action to recover damages for personal injuries and
The plaintiff moved for summary judgment on the issue of liability and Gilbert and Schoonmaker moved for summary judgment on their third-party claims for common-law indemnification. The Supreme Court found that there were issues of fact which precluded granting summary judgment.
To establish liability for common-law negligence or violation of Labor Law § 200, the plaintiff must establish that the defendant in issue had “authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition” (Russin v Picciano & Son,
The evidence in the record established that Gilbert visited the site “[s]ometimes once or twice a week, sometimes once every two weeks” to talk to customers and review the progress of the work. There is no evidence in the record that the owner supervised the manner in which the work was performed. Therefore, upon searching the record, summary judgment is awarded to Gilbert dismissing the plaintiffs causes of action sounding in common-law negligence and violation of Labor Law § 200 insofar as asserted against it.
However, according to the decedent’s coworker, the general contractor Schoonmaker “supervised all” Gilbert’s construction work and purchased the materials for the job. Schoonmaker was referred to as “[t]he supervisor.” When asked at his deposition if he supervised the manner of the work, Schoonmaker’s testimony was somewhat equivocal. There are issues of fact as
Labor Law § 240 (1) imposes liability upon an owner and general contractor for failing to provide “proper protection” against elevation-related hazards, whether or not the owner or contractor actually exercised supervision or control over the work (see Ross v Curtis-Palmer Hydro-Elec. Co.,
Labor Law § 241 (6) imposes liability on owners and general contractors for failure to comply with provisions of the industrial code, “even in the absence of control or supervision of the worksite” (see Rizzuto v Wenger Contr. Co., supra at 348349). In the instant case, failure to comply with 12 NYCRR 23-1.24 (b) was established as a matter of law. However, there are issues of fact as to whether failure to comply with 12 NYCRR 23-1.24 (b) was a proximate cause of the accident (see Montalvo v J. Petrocelli Constr., Inc.,
The third-party defendant/second third-party defendant RPM has a corporate identity separate and distinct from the plaintiffs decedent and therefore may be held liable to the third-party plaintiffs for common-law indemnification (see Quinlan v Eastern Refractories Co.,
To establish a claim for common-law indemnification, “the
Schoonmaker would only be entitled to common-law indemnification if he did not supervise or control the work but is vicariously liable pursuant to Labor Law § 240 (1) and § 241 (6). Although it is clear from the record that the liability, if any, of the owner Gilbert is purely vicarious, it is not entitled to conditional summary judgment at this juncture against RPM for common-law indemnification since it unclear from the record whether RPM “was either negligent or exclusively supervised and controlled plaintiffs work site” (Reilly v DiGiacomo & Son, supra at 318). The relative culpability, if any, of Schoonmaker and RPM presents issues of fact which preclude the granting of summary judgment with respect to Gilbert’s third-party claim (see Hernandez v Two E. End Ave. Apt. Corp., supra at 558). S. Miller, J.P., Santucci, Goldstein and Rivera, JJ., concur.